2005978 (Refugee)

2005978 (Refugee) [2020] AATA 5159 (24 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2005978
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Tamara Hamilton-Noy
DATE:24 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 November 2020 at 7:58am
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – ethnic Chinese – economic conditions – threats from debt collectors – employment – poor credit rating – physical violence – mental health condition – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 March 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 23 April 2019. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is, whether he is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds, or is a member of the same family unit of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on a Malaysian passport. He has at all times maintained that he is a citizen of Malaysia. The Tribunal finds that the applicant is a Malaysian citizen and has assessed his claims against Malaysia as his country of nationality.
Claims for protection
In his written protection application, the applicant stated he is a Chinese Buddhist from Ipoh, Perak. He stated that he is divorced with [number] children. He stated that he travelled to [two specified countries] and that he worked in [Country 1] from 2015 to 2016, that he worked from 1988 to 1991 as [an occupation 1] and that he worked from 1991 to 2018 in various [occupation 2] positions, including in [Country 1].
In his written protection application, the applicant said he had left Malaysia because of the increased cost of living, not being able to obtain a worthwhile job and having difficulties in paying his debts. He stated he had experienced harm in Malaysia: that he had received many calls from unknown numbers and also had a visitor at his house and his workplace, claiming they were from a debt collection company. They urged him to pay at least 10% of the debts to them. They used violence to threaten and harm him and wanted to seize his assets and do any action possible to make him scared; he was feeling unsafe, humiliated and tense. The applicant said he had sought assistance from the police who said they could not take action if the collector hadn’t damaged him or his property; the officer told him to pay the debt rather than being humiliated. He did not move to another area of Malaysia because of the cost and the bank would seize his house.
The applicant stated, in his written protection application, that if he returns to Malaysia his name has been blacklisted because of his failure to pay the debts, that ‘this title’ is preventing him to obtain better work or to obtain loans because of his previous bad credit rating, that his employer had been advised from the third party collector to urge him to pay his debts and that some of the employers were unable to offer him a job due to this factor, as they were worried that this issue would lead the applicant to use company assets to pay his debts. He believes he will be harmed or mistreated if he returns, that he will face the same issues and that the third party collector will use a lot of tactics such as threatening, embarrassing and humiliating him to make him scared and pay the debts.
The delegate of the Department found that the applicant is not a refugee as he does not fear persecution for one of the reasons set out in s.5J(1)(a) and that he is not owed complementary protection as the claimed harm is not significant harm within the meaning of s.36(2A). A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Tribunal hearing
The Tribunal hearing was held on 12 October 2020. At the time of the hearing the Tribunal’s Registry was closed due to COVID-19 and the Tribunal decided it was appropriate to conduct the hearing by phone, having regard to the Tribunal’s objectives of providing a mechanism of review that is informal and quick and is proportionate to the complexity of the matter. The applicant was not represented at the hearing and the Tribunal was assisted during the hearing by a Malay interpreter. The Tribunal was satisfied from the answers given by the applicant during the hearing that he was able to give evidence and present arguments throughout the hearing.
The applicant told the Tribunal that he is [age] years of age and was born in Ipoh city in Perak. Before he left Malaysia he lived in Malacca for one month and prior to that was living in Kuala Lumpur for around 30 years. His parents were both born in Malaysia and he is a Chinese Buddhist. He has [number] children, [gender and ages specified]. He divorced his wife in 2014. His parents are deceased and he has [specified family members] living in Ipoh. He does not have any family in Australia.
The applicant stated that he had travelled to [two specified countries] on holiday and had worked in [Country 1], but not for long. He finished [school grade] and did not attend university. After school he worked in [a job] and then in [businesses] for around 10 years, mostly in Kuala Lumpur. He speaks Cantonese, Mandarin, English and Malay.
The Tribunal asked about the written protection application and the applicant said that a friend had helped him with the application and the applicant himself filled in most things. The Tribunal asked why the applicant had left Malaysia and he said he was in a lot of debt and people kept disturbing him, calling him, knocking on his door and coming to his workplace. He had separated from his wife because of money, there was not enough income to support his family and he had to borrow money from friends. He had debt and a credit card and couldn’t afford to repay for a number of years. He was divorced and his house was auctioned by the bank, he thinks in around 2014 or 2015. He didn’t receive any money from the sale; the auction amount covered the balance of his bank loan and his credit card amount. The Tribunal asked whether the applicant’s debt had therefore been paid off as of 2014 or 2015 when the sale occurred and he said yes. The Tribunal asked what had happened from 2015 onwards. The applicant said he had lent money from friends because he was earning less money and had to give money to his children for studying and for his [child’s] college. Most months he borrowed money from friends and also borrowed money from his boss.
The Tribunal asked who the applicant had borrowed money from and what had been borrowed. He said he borrowed from his boss for one or two months only. He borrowed from six or more friends and owed a total of [amount] ringgit at the time he left Malaysia. A small part of this was owed to his boss and the rest to his friends. Since being in Australia he has paid back [a small amount], so still owes [balance amount].
The Tribunal asked the applicant what he had meant about people disturbing him and knocking on his door. He said this was his friends and if they called he could ignore them. He doesn’t have any current contact with them because he has changed his phone number and doesn’t know if they are aware he is in Australia. He has paid one debt back and the others couldn’t find him.
The Tribunal asked whether the applicant had experienced harm in Malaysia. He said yes, a friend had people come and hit him. He tried to report this to the police but they ignored him and said he had no proof. As to who had come and hit him, he said it was a friend who came with a few guys. They came in 2016, 2017, 2018; it was going on a few years. They came almost every month. As to why he had not been making repayments in Malaysia, he said he was earning less income. As to why he hasn’t repaid the debt while in Australia, he said he worked for the first year after arriving in December 2018 in a [business] but this year because of the lockdown he has not been able to work. A friend is currently helping him with accommodation and food.
The Tribunal asked about the police report the applicant stated he had tried to make. He said he went once in 2016 to make a report but was told it was not a criminal case so no action was taken. As to what he had told the police had happened, he said he had told the police officer he owed people money and they threatened him and came to his house every month to disturb him. The officer said there was no proof. He made a police report but it wasn’t accepted and he does not have this with him in Australia. The police station was near his house in Kuala Lumpur; he doesn’t remember what street it was on. As to why he felt he had to leave Malaysia in late 2018, he said he couldn’t stand it anymore, his work was interrupted by the guy who came to him and it affected his work. The collector who came to his work was, he thinks, employed by his friend to collect the money. As to whether he had negotiated a repayment arrangement, the applicant said he did but couldn’t afford it as every month it was quite high.
As to his income and expenses, the applicant stated that he earned [amount range] ringgit per month, sometimes as high as [top amount]. His rent was 600 per month. He sold his car because he couldn’t afford the car loan. His other expenses were for him and his [children], who were studying and he was covering transport and college costs. Sometimes he didn’t have enough even when he earned [the top amount] a month. On top of his rent, his utilities were 300, eating out cost 30 to 50 per day, so 1,500 a month, and his children’s expenses were 300 each for transport and college was 20,000 over two years. His former wife was a housewife and didn’t work.
As to what he fears if he returns to Malaysia, the applicant said he fears the debt collector would come and disturb him and threaten him. In Malaysia he doesn’t have anything at all, just his [children] who are now starting to stay with his former wife. They are now both working and studying. As to whether there were any other reasons for leaving Malaysia, he said no.
The applicant said the debt collector had approached him in Kuala Lumpur because he was mostly working in Kuala Lumpur. As to why he couldn’t return to another area of Malaysia other than Kuala Lumpur, he said that Kuala Lumpur has higher pay than other areas. They would be able to track him. The debt collector could trace him by looking at his employee superannuation fund.
The Tribunal observed it would be reasonable for the applicant’s friends to expect him to repay the money he borrowed from them. The applicant stated that in Kuala Lumpur in the divorce case he lost his house and car. He was hospitalised for three days because of stress after his daughter gave him sleeping pills because he couldn’t sleep. He wouldn’t be able to secure a job because the lenders would be coming after him; he wouldn’t be able to stay for a long time. He needs to take care of his children’s living, school and expenses. The Tribunal observed that the applicant’s children are now adults and of working age and he stated they have only worked for two years.
The Tribunal asked why the applicant couldn’t return to Malaysia and find work to repay his debts there and he said he doesn’t know how they calculate interest. He worked for 10 years and is getting old and surely they could find him.
The Tribunal asked the applicant to clarify whether he was harmed in Malaysia or threatened with harm. He said that he was beaten twice, these were small beatings, and he was told if he didn’t pay he would lose a leg or hand. The Tribunal observed it was difficult to understand the police would not have been interested if he was assaulted and he stated that at that time he had been threatened. He was threatened by the men that if he went to the police they would harm his children and he can’t lose his children. The Tribunal observed the applicant had left his children in Malaysia when he came to Australia and he said yes, it was not that easy and maybe they can ask to study here if he can make a living.
The applicant stated that even if he returns to Malaysia, at his age he is unsure how much income he can earn. There is also a debt collector coming for him. He is unsure how he would survive, having to rent a house and pay for food.
Country information
The Tribunal summarised and discussed the following country information with the applicant at the hearing and the applicant was invited to comment on the information during the hearing.
Malaysia is classified as an upper middle income, export-oriented economy by the World Bank. Malaysia has transformed since independence from a commodity-based economy to a leading producer of electronic parts, electrical products, oil, natural gas and a range of manufactured products. It is the world’s second largest producer and exporter of palm oil and is ASEAN’s largest energy exporter, with income from oil and natural gas providing the government its largest single revenue source. Malaysia has seen a significant reduction in poverty rates, with people living below the national poverty line falling from over 50 per cent in the 1960s to less than one per cent today. Persistent inequalities remain, though, for indigenous peoples and the poorest 40 per cent of the population, largely consisting of bumiputera. Poverty rates are also higher in rural areas, particularly in Kelantan, Kedah, Sabah and Sarawak. In 2018 Malaysia was ranked 57 out of 189 countries in the UNDP’s Human Development Index, placing it in the ‘high human development’ category.[1]
[1] DFAT Country Information Report Malaysia, 13 December 2019, at 2.9 – 2.10.
In October 2019, Prime Minister Mohamad launched the ‘Shared Prosperity Vision 2030’, a plan for economic growth, focusing on providing a decent standard of living for all Malaysians, narrowing the wealth gap and the urban-rural divide by 2030.[2] In July 2020, the government announced an intention to re-launch the Shared Prosperity Vision during 2020 in view of income disparities between districts and states, to better achieve the vision.[3] In September 2020, the government announced its intention to establish a Shared Prosperity Action Council, intended to act as a monitoring body to ensure the objectives in the vision are achieved.[4]
[2] DFAT Country Information Report Malaysia, 13 December 2019, at 2.11.
[3] ‘Govt to relaunch Shared Prosperity Vision 2030’, Bernama, 19 July 2020, New Straits Times at
[4] ‘Shared Prosperity Action Council to monitor WKB 2030, says Muhyiddin’, Bernama, 29 September 2020, The Edge Markets at
In February 2019 the Malaysian Department of Statistics reported a unemployment rate of 3.3 per cent, and in June 2019 reported a labour force participation rate of 68.6 per cent.[5] Men’s participation rate in the workforce in 2018 was 80.6 per cent and men earn higher wages for similar work performed and outnumber women in professional and technical fields.[6]
[5] DFAT Country Information Report Malaysia, 13 December 2019, at 2.12.
[6] DFAT Country Information Report Malaysia, 13 December 2019, at 3.119.
The above information was summarised for the applicant at the hearing and the Tribunal observed that the applicant had worked in Malaysia, [Country 1] and Australia over a number of years and it may find from the country information that the applicant would not face serious harm or significant harm upon return to Malaysia because of the cost of living or because of being unable to find a worthwhile job. The applicant stated in response to the country information that Malaysia is very racist and corruption is high and Chinese cannot benefit.

In 2018, the Malaysian Department of Statistics estimated that there were 6.69 million Chinese Malaysians in Malaysia, making up some 20 per cent of the population and being Malaysia’s second largest ethnic group. Chinese Malaysians comprise a high proportion of the professional and educated class and are prominent in business and commerce. They tend to be wealthier than other ethnic groups in Malaysia. They are concentrated in the west coast states of peninsular Malaysia, living in large urban centres, and the states of Johor Perak and Selangor where they comprise approximately 30 per cent of the population.[7]
[7] DFAT Country Information Report Malaysia, 13 December 2019, at 3.8.
There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians. Chinese Malaysians freely participate in political life. There are few Chinese Malaysians in the civil service but are well represented in the private sector and many small and medium enterprises and large corporations are Chinese Malaysian. Chinese Malaysians report discrimination against the community in the business sector, unequal access to certain industries, raids by JAKIM on halal businesses and difficulties obtaining and maintaining a business licence.[8]
[8] DFAT Country Information Report Malaysia, 13 December 2019, at 3.9 – 3.10.
In July 2015 there was a disturbance at a retail centre in Kuala Lumpur where over 100 Malays shouted anti-Chinese slogans, destroyed property and attacked bystanders. Twenty five people were detained after the incident. This incident is understood by DFAT to be an isolated incident and not an indication of broader societal violence against Chinese Malaysians. DFAT assesses that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry to the state tertiary system or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector.[9]
[9] DFAT Country Information Report Malaysia, 13 December 2019, at 3.13 – 3.14.
The applicant stated in response to the above information that he doesn’t know what to say and if he goes back, he will have the same lifestyle he had before.
The Tribunal noted that the Malaysian Chinese Association’s Public Services and Complaints Department is able to play an intermediary role between illegal moneylenders and Chinese Malaysians and that sources have advised DFAT that the Association is able to negotiate loan repayment settlements with repayment rates negotiated down to match the one per cent government rate.[10] The applicant stated in response that the Association is only able to help out if there is a bank or a licenced company and doesn’t think they will help him; he clarified his evidence that he had not borrowed any amounts from a loan shark.
[10] DFAT Country Information Report Malaysia, 13 December 2019, at 3.113.
Malaysia has law enforcement entities at federal and state levels. The Royal Malaysia Police (RMP) employs 115,000 officers in 837 police stations across Malaysia. Local and international sources consider the RMP to be professional and effective. The quality of members’ responses varies, though, based on levels of training, capacity and engagement in corruption, and RMP officers receive limited training and are among the lowest paid members of the Malaysian civil service. While Malaysians perceive the police as one of the most corrupt institutions in the country, following a 2005 Royal Commission the government acknowledged and addressed police corruption, with action taken against police officers in civil and criminal courts, external investigations conducted by the Enforcement Agency Integrity Commission and the establishment of an Integrity and Standards Compliance Department in 2014.[11]
[11] DFAT Country Information Report Malaysia, 13 December 2019, at 5.1 & 5.5 – 5.8.
There are courts at federal, state and subordinate levels in Malaysia. Sources have reported issues of judicial independence, arbitrary verdicts, selective prosecution, delays in court-ordered relief for civil plaintiffs and preferential treatment of some litigants and lawyers. Courts have issued contentious verdicts, particularly involving cases of high-profile politicians and human rights defenders. However, most cases in Malaysian civil courts are described as complying with the rule of law and legal procedure.[12]
[12] DFAT Country Information Report Malaysia, 13 December 2019, at 5.13 – 5.14 & 5.17.
The Moneylenders Act 1951 gives police a wide range of investigative powers against illegal moneylenders.[13] The Penal Code has provisions relating to violent offences, assaults and property offences.[14]
[13] DFAT Country Information Report Malaysia, 13 December 2019, at 3.116.
[14] Penal Code, Act 574: Chapter XVI (offences affecting life; hurt; criminal force and assault) and Chapter XVII (offences against property).
The Tribunal observed that it may find the applicant could access effective state protection from any threats or harm from the friends he owes money to. The applicant did not want to make any comment on the above information.
Findings and reasons
The Tribunal is prepared to accept the applicant’s evidence about his background, family, employment history and travel history. The Tribunal finds that the applicant is [an age]-year-old who was born in Ipoh, Perak and that he lived in Kuala Lumpur for 30 years prior to leaving Malaysia. The Tribunal accepts the applicant was divorced in 2014 and that his children, now [specified] years of age, are studying and working in Malaysia. The Tribunal accepts the applicant’s siblings reside in Ipoh. The Tribunal accepts the applicant first worked as [an occupation 1] and that he then worked on a long-term basis in the [specified] industry, both in Malaysia and, for a period of time, in [Country 1].
The Tribunal is prepared to accept that, after his divorce, the applicant’s house was auctioned and that the amount obtained in the same was used to pay out the remaining mortgage and the applicant’s credit card debt. The Tribunal finds that, after this sale, which occurred in 2014 or 2015, the applicant was debt-free.
The Tribunal is prepared to accept that, following this time, the applicant’s children needed additional funds for schooling and college fees. The applicant gave little detail in his evidence to the Tribunal about the amounts he states he borrowed from each individual. However, the Tribunal considers it plausible that, given the applicant had increased costs due to his children’s education, he borrowed money from friends to cover his additional costs. The Tribunal is prepared to accept that the applicant borrowed from six friends, repaid one friend and the others couldn’t find him before he left Malaysia and that he owed a total of [balance amount] ringgit to his other five friends.
However, inconsistencies in other aspects of the applicant’s evidence lead the Tribunal to have doubts that he experienced threats or harm before he left Malaysia. The applicant raised for the first time at hearing that his friend had people come and hit him and that his friend came ‘with a few guys’ almost every month for 2016, 2017 and 2018. The applicant told the Tribunal that he completed most of the information in his written protection application but that a friend also assisted him. The Tribunal finds that, given the applicant’s involvement in the written protection application, it is implausible that, if the applicant had been beaten regularly over several years as he claims, he would not have included this as part of his written claims for seeking protection.
Further, the applicant’s written claims stated that he had not moved because the bank would seize his house; at the Tribunal hearing, he told the Tribunal that his house had been sold after his divorce in 2014. This inconsistency adds further doubt to the Tribunal’s assessment of the applicant’s general credibility.
The Tribunal is prepared to accept that the applicant owed a number of friends money before he left Malaysia. The Tribunal considers it plausible that these friends phoned the applicant, knocked on his door and came to his workplace in attempts to have the applicant repay the amounts borrowed to them. The Tribunal also considers it plausible that a collector employed by one of his friends approached the applicant at his work and asked him to repay amounts borrowed. However, for the reasons stated above, the Tribunal does not accept that a debt collector used violence to threaten and harm the applicant, that a friend came with a few guys almost every month between 2016 and 2018 and hit the applicant, that the applicant received two ‘small beatings’ or was threatened with losing a leg or a hand. The Tribunal does not consider it plausible that the applicant would approach the police when he was threatened but not when he was beaten and, on this basis, does not accept the applicant made a police report in 2016 or at any time while he was in Malaysia.
The Tribunal accepts that, if he returns to Malaysia now or in the reasonably foreseeable future, the applicant owes money to friends who would expect him to repay this money. The Tribunal is prepared to accept that the applicant’s friends will be unhappy that he has not yet repaid them and that they may use a debt collector to collect amounts owed from the applicant. However, the Tribunal is not satisfied that that applicant previously experienced threats or physical harm in Malaysia because of outstanding amounts owed to his friends and does not accept the applicant’s friends would threaten or physically harm him if he returns to Malaysia. The Tribunal is not satisfied the applicant would face a real chance of serious harm, if he returns to Malaysia now or in the reasonably foreseeable future, because he owes money to friends.
The applicant stated that he fears a debt collector would ‘disturb and threaten’ him. For the reasons stated above, the Tribunal is not satisfied that the applicant was threatened or harmed by a debt collector or anyone else in Malaysia. The Tribunal is not satisfied the applicant would face a real chance of serious harm, if he returns to Malaysia now or in the reasonably foreseeable future, because a debt collector would attempt to collect outstanding debts to friends from him.
The applicant stated to the Tribunal at the hearing that he took sleeping pills given to him by his daughter and was then hospitalised for three days. The applicant did not give evidence of having a diagnosed mental health condition or of having sought treatment for a mental health condition. He did not claim to fear harm because of previously being hospitalised in Malaysia. The Tribunal does not accept the applicant has a psychological or psychiatric condition and is not satisfied that, if he returns to Malaysia now or in the reasonably foreseeable future, he faces a real chance of serious harm because he has a mental health condition.
The applicant stated in his written claims that he left Malaysia because of the increased costs of living and not being able to obtain a worthwhile job. He stated to the Tribunal that he is getting old and is unsure how much income he can earn. The applicant did not advance his claims at hearing to have been blacklisted or to have a title that prevents him from finding work. The Tribunal is not satisfied that the applicant’s name is on a ‘blacklist’ because of his failure to pay debts; or that he has a ‘title’ that prevents him from finding work, from finding better work or from obtaining loans; or that employers would be unable to offer him employment because of this. The applicant has a long-term work history in Malaysia and his children are now of working age and able to, at least in part, support themselves while residing with their mother. The country information considered by the Tribunal states that Malaysia is an upper middle income economy and that men as of 2018 had a workforce participation rate of just over 80%. Less than one per cent of the population lives below the national poverty line in Malaysia. While poverty rates are higher in rural areas, the Tribunal finds that the applicant would return to Kuala Lumpur where he previously lived and worked for a number of years. The current government has committed to a plan to provide a decent standard of living for all Malaysians within the next decade. The Tribunal is not satisfied that the applicant faces a real chance of serious harm, if he returns to Malaysia now or in the reasonably foreseeable future, because he perceives that there is an increased cost of living, that he is getting old, that he may not be able to obtain a worthwhile job, that he is unsure of how much money he can earn or for all of these reasons.
The applicant told the Tribunal that Malaysia is racist and Chinese Malaysians cannot ‘benefit’. The Tribunal accepts that there is a level of discrimination against Chinese Malaysians in Malaysia. Chinese Malaysians are, though, described as wealthier than other groups in Malaysia. The Tribunal is not satisfied that any discrimination faced by the applicant amounts to serious harm, having regard to the instances of serious harm set out in s.5J(5). The Tribunal is not satisfied that the applicant faces a real chance of serious harm, if he returns to Malaysia now or in the reasonably foreseeable future, because he is Chinese Malaysian.
The Tribunal has also considered the cumulative claims of the applicant and is not satisfied the applicant has a well-founded fear of persecution for any reason. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). This requires the Tribunal to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk the applicant will face significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
‘Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The pain or suffering must be intentionally inflicted. However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable. However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Torture is exhaustively defined in s.5(1) of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted. Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR). However, torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
The Tribunal accepts that, if he is removed from Australia to Malaysia, the applicant faces a level of discrimination as a Chinese Malaysian and that he has friends who would expect him to repay amounts he previously borrowed from them. The Tribunal is not satisfied that any discrimination faced by the applicant or owing money to friends, or when these matters are considered cumulatively, amount to severe pain or suffering, or pain or suffering that could reasonably be regarded as cruel or inhuman in nature, or amounts to extreme humiliation which is unreasonable.
The Tribunal is not satisfied that there is a real risk the applicant faces significant harm if removed from Australia to Malaysia. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tamara Hamilton-Noy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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[2020] AATA 5159

24 November 2020

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

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